Guthrie v. Alabama By-Products Company, Civ. A. No. 71-21.
| Citation | 328 F. Supp. 1140 |
| Decision Date | 21 June 1971 |
| Docket Number | Civ. A. No. 71-21. |
| Parties | T. W. GUTHRIE et al., Plaintiffs, v. ALABAMA BY-PRODUCTS COMPANY, a corporation, et al., Defendants. |
| Court | U.S. District Court — Northern District of Alabama |
Roscoe B. Hogan, Hogan & Smith, L. Drew Redden, Rogers, Howard, Redden & Mills, Charles E. Clark, Frank M. Bainbridge, Bainbridge & Mims, Birmingham, Ala., for plaintiffs.
William B. Moore, Jr., Rushton, Stokely, Johnston & Garrett, Montgomery, Ala., for Koppers Company, Inc.
E. M. Zeidman, Birmingham, Ala., for Alabama Oxygen Company.
Robert G. Tate, Thomas, Taliaferro, Forman, Burr & Murray, Birmingham, Ala., for Bessemer Galvanizing Works, U. S. Steel Corp., E. I. DuPont deNemours & Co., Republic Steel Corp.
L. Murray Alley, F. J. Gale, III, Cabaniss, Johnston, Gardner & Clark, Birmingham, Ala., for Woodward Corp., McWane Cast Iron Pipe Co., Alabama By-Products Co., Chicago Bridge & Iron Co., Hayes International Corp.
Charles H. Volz, Jr., Volz, Capouano, Wampold & Prestwood, Montgomery, Ala., for Birmingham Hide & Tallow Co.
John H. Morrow, Macbeth Wagnon, Jr., Bradley, Arant, Rose & White, Birmingham, Ala., for Vulcan Materials Company, Swift Agricultural Chemicals Corp.; U. S. Pipe & Foundry Co.; Stockham Valves & Fittings, Inc.; Clow Corp.; Allied Chemical Corp.
W. B. Fernambucq, Huie, Fernambucq & Stewart, Birmingham, Ala., for Peabody Coal Co.
Plaintiffs, as lower riparian landowners, seek damages and injunctive relief for alleged water pollution.
This action was filed on behalf of some 65 named plaintiffs "and all others similarly situated." Plaintiffs allege that they are riparian landowners along the Warrior River, a navigable waterway, and some of its tributary creeks which run through the industrial valley of Birmingham. The defendants named in the original complaint are some 19 industrial corporations who, plaintiffs aver, discharge liquid wastes from their industrial plants into creeks emptying into the Warrior River. Plaintiffs allege that they own riparian lands downstream from the points where some or all of the defendants discharge such wastes; that they use these lands for both commercial and recreational purposes; and that the wastes discharged by defendants cause the waters of the Warrior River to be harmful and offensive to fish, wildlife, livestock and human beings, including the plaintiffs, and that as a consequence of this pollution the use, value and enjoyment of their riparian lands have been impaired.
In the original complaint, federal jurisdiction is posited exclusively upon 28 U.S.C.A. § 1331, the theory being that the defendants are discharging the wastes complained of in violation of Section 13 of the Rivers and Harbors Appropriation Act of 1899.1 In addition, plaintiffs contend that the defendants are liable for the same acts on common law theories of negligence, trespass and nuisance.
Defendants filed motions to dismiss the original complaint advancing the ground, inter alia, that this court lacks jurisdiction over the subject matter of the action because the matter in controversy does not arise under the Constitution, laws or treaties of the United States within the meaning of 28 U.S.C.A. § 1331.
Plaintiffs thereafter filed three amendments to the complaint. The first such amendment alleges (a) diversity of citizenship between the plaintiffs and some, but not all, of the defendants, (b) that the State of Alabama has issued or provided for the issuance of permits to the defendants for their industrial waste discharges through the Alabama Water Improvement Commission, (c) that the complaint, as amended, raises a federal question under one of the Civil Rights Acts,2 (d) that the complaint, as amended, raises a federal question under the 14th Amendment to the Constitution of the United States, and (e) class action allegations of the type sanctioned by Rule 23, F.R.Civ.P.
By two additional amendments, plaintiffs (a) strike two of the original plaintiffs and add fourteen new plaintiffs, (b) add three defendants, (c) assert jurisdiction under the 5th Amendment to the Constitution of the United States, (d) urge pendent jurisdiction of their non-federal claims, and (e) divide their claim into six separate counts, asserting claims which may be summarized as based upon violations of 33 U.S.C.A. § 407, negligence, willful and wanton misconduct, nuisance and deprivation of property and the enjoyment thereof in violation of 42 U.S.C.A. § 1983, and of the 5th and 14th Amendments of the United States Constitution.
Defendants refiled motions to dismiss the complaint as amended again adverting to the lack of federal question jurisdiction and the lack of diversity jurisdiction, inter alia. The court has considered the extensive briefs from all parties and the thoroughly excellent oral arguments of counsel, and has concluded that this court does not have jurisdiction of the subject matter of this action.
The amended complaint discloses facially that some of the defendants are citizens of Alabama, as are the plaintiffs. A fundamental principle of federal diversity jurisdiction is that the diversity must be complete, so that all the plaintiffs are citizens of different states from all the defendants.3 Plaintiffs' suggestion that the joinder of claims permitted by Rule 20, F.R.Civ.P., relieves the necessity of complete diversity will not do. There is no federal jurisdiction of this action based on diversity of citizenship. Moreover, since the lack of diversity is an actual defect, and not merely a formal one, it cannot be cured by a further amendment.4
42 U.S.C.A. § 1983 gives a right of action to redress certain deprivations, under color of state law, of "* * * rights, privileges, or immunities secured by the Constitution and laws * * *" of the United States. However, this civil rights statute is intended for the protection of personal liberties rather than for the protection of property rights.5
In this action plaintiffs sue as riparian landowners. All of the injuries complained of relate to plaintiffs' interests in real property. These are not the kinds of interests protected by 42 U.S. C.A. § 1983.
Another element that is essential to a claim under 42 U.S.C.A. § 1983 is that the action complained of be "under color" of state law. It is likewise necessary, in order to invoke the protection of the 14th Amendment, that there be "state action."6 The only state action, or action under color of state law, alleged in the amended complaint, is that Alabama has created an agency known as the Water Improvement Commission and conferred upon it power to issue permits for the discharge of industrial liquid wastes and that some of the defendants are discharging the wastes complained of pursuant to such permits. Alabama's issuance of a permit for industrial waste discharges, even though the issuing agency has power to regulate or prohibit the discharges, is not the kind of state action which makes such discharges subject to the limitations of the 14th Amendment; nor does the fact that the defendants, or some of them, obtained such permits convert their discharges of industrial waste into action under color of state law within the ambit of the civil rights acts.7
The 5th Amendment to the Constitution of the United States applies to action of the federal government. Plaintiffs do not allege a federal permit or any other basis for attributing responsibility for the industrial waste discharges complained of to the federal government.
Accordingly, the amended complaint does not present a controversy which arises under 42 U.S.C.A. § 1983, or under the 5th or 14th Amendment to the United States Constitution.
Plaintiffs have urged with great emphasis that there is federal question jurisdiction on the ground that the amended complaint presents a controversy arising under Section 13 of the Rivers and Harbors Appropriation Act of 1899.8 Plaintiffs allege that the defendants' discharges are "refuse" within the meaning of 33 U.S.C.A. § 407, and that the defendants "* * * on divers dates continuing up until the date of filing this claim deposited refuse into tributaries of navigable waters from which said refuse floats into navigable waters without first obtaining permits from proper United States authorities for the discharge of said refuse materials into said tributaries or navigable waters all in violation of Title 33, U.S.C.A. Sec. 407."
Assuming, arguendo, that the amended complaint charges violations of 33 U.S.C.A. § 407, it does not follow that plaintiffs' claim of injuries resulting from conduct which violates 33 U.S.C.A. § 407 "arises under" that statute in a sense that confers federal court jurisdiction of this action under 28 U.S.C.A. § 1331. The test of whether a claim "arises under" the laws of the United States is not a precise one. It is clear, however, that something more than mere reference to a federal statute is required. Perhaps the most frequently quoted statement of basic guiding principles can be found in Justice Cardozo's opinion in Gully v. First National Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936).
How and when a case arises `under the Constitution or laws of the United States' has been much considered in the books. Some tests are well established. To bring a case within the statute, a right or immunity created by the Constitution or laws of the United States must be an element and an essential one, of the plaintiff's cause of action * * * The right or immunity must be such that it will be supported if the Constitution or laws of the United States are given one construction or effect and defeated if they receive another * * * (citations omitted). 299 U.S. at 112-113, 57 S. Ct. at 97.
In Shulthis v. McDougal, 225 U.S. 561, 32 S.Ct. 704, 56 L.Ed. 1205 (1912), the Court stated:
A suit to enforce a...
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